SDV Insights

In Holyoke Mut. Ins. Co. in Salem v. Vibram USA, Inc., decided in September 2018, the Massachusetts Supreme Judicial Court held that an unusual advertising injury triggered a duty to defend. The advertising idea was the use of a celebrity name with no intrinsic connection to any of the products being sold.

In Hartford Roman Catholic Diocesan Corp. v. Interstate Fire & Casualty Co., Docket No. 16-2999-cv, 17-2484-cv (2d Cir. 2018), the United States Court of Appeals for the Second Circuit affirmed the trial court's decision that the assault and battery exclusion in an excess liability policy did not exclude coverage for claims made against the Archdiocese for sexual abuse, and that such claims qualified as an "occurrence" under the policy.

2018 was a year of landmark decisions regarding insurance coverage for a variety of emerging claims, including cyber fraud, the "me too" movement, and wildfires. Read on to learn more as well as to find out what cases you should keep your eye on as 2019 unfolds.

The Fifth Circuit's recent opinion in Lyda Swinerton Builders, Inc. v. Oklahoma Sur. Co. includes policyholder-friendly holdings on Texas law concerning the duty to defend and the potential to recover treble damages for an insurer's knowing violation of Texas Insurance Code. In this case, the Fifth Circuit did justice to the broad scope of the duty to defend, making inferences from the complaint and the policy to find a potential of coverage.

In a suit filed by an owner against a general contractor for alleged construction defects at a new sports complex, the general contractor's commercial general liability insurer failed to defend its insured. The Western District of Texas ruled in the general contractor's favor and found that the insurer had a duty to defend, despite a breach of contract exclusion in the general contractor's GL policy.

In 2017 and 2018 alone, California experienced the two largest and the first and fourth deadliest fires in its history. Sadly, a University of California report predicts that the frequency and potency of these fires will only continue to increase in the coming years and decades, increasing the importance of knowing about insurance.

Utilizing an owner-controlled or contractor-controlled insurance program (collectively known as "wrap-ups") can reduce claims, save costs, and give owners and general contractors comfort in knowing their project is adequately insured. However, problems often arise when a subcontractor doesn't enroll in the wrap-up and, instead, agrees to provide additional insured coverage to the owner and general contractor on the subcontractor's own general liability policy.

In Am. Mining Ins. Co. v. Peters Farms, LLC, the Kentucky Supreme Court ruled that a mining error was not a covered accident under a commercial general liability insurance policy. The central issue was whether an insured mining company's unauthorized removal of minerals from neighboring property was an "occurrence" caused "property damage" as defined by the mining company's commercial general liability policy ("CGL Policy").

Just as the businesses in the US were becoming familiar with the EU General Data Protection Regulation ("GDPR") and realizing it may apply to them, Canada came out with its own data privacy regulations under the Personal Information Protection and Electronic Document Act ("PIPEDA").

SDV attorneys spend a lot of time reviewing insurance policies for our construction industry clients. From analyzing policies that are meant to provide additional insured coverage to our general contractor clients, to parsing through OCIP and CCIP placements sent to us by our broker colleagues, we've seen it all. Sometimes coverage can be a scary thing, so in honor of Halloween, here is our "Top 10 List of Scariest Insurance Policy Terms" we've seen over the past year.